You are all no doubt aware that OSHA does not yet have a specific standard addressing viral pandemics. Rather, the General Duty Clause will be applied to this situation. The GDC requires that “Each employer shall furnish each of [its] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees.”

Despite the wording of the GDC, it does not make employers absolute guarantors that their employees will not be injured or exposed to hazards on the job. Rather, OSHA must prove four elements in order to establish a violation of the GDC. One of those elements is that the employer failed to implement feasible and useful methods to correct the hazard.

OSHA recently issued “Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus.” You can find it here: https://www.osha.gov/Publications/OSHA3994.pdf . Most of these are common-sense steps that we are familiar with. OSHA may construe a failure to follow these ten steps as a failure to implement “feasible and useful methods to correct the hazard” should an employee contract the virus in your workplace.

If you are not already doing so, I would suggest that you strongly consider implementing as many of the ten steps recommended by OSHA as possible, and that you maintain records showing that you were aware of OSHA’s recommendations and followed them. Complying with the recommendations is not enough; you must be able to prove that you did so.

As always, don’t hesitate to reach out to me if you have any questions.

THIS IS IMPORTANT! If you want to take advantage of the tax credit available for paid leave provided to your employees under the EPSLA and EFMLA of the FFCRA, you need to read this. The IRS has given us an outline of what some of the FFRCA-related forms should look like.

You may recall that the United States Department of Labor indicated that so long as an employer attempted in good faith to comply with the FFCRA, it would allow a thirty-day “non-enforcement” grace period. We originally believed that that meant that we had thirty days from the effective date of the FFCRA of April 1, 2020; meaning that the non-enforcement period would run until April 30, 2020.

Unfortunately, the Wage and Hour Division of the DOL has issued a Field Assistance Bulletin indicating that the non-enforcement period actually begins on date of enactment of the FFCRA (March 18). This means that the thirty-day grace period will expire two weeks sooner than we originally thought, on April 17, 2020. You can read the Bulletin here: https://www.dol.gov/agencies/whd/field-assistance-bulletins/2020-1

The Bulletin does give us some useful guidance by defining what an employer must do in order to act in good faith for purposes of the thirty-day grace period.

The employer remedies any violations, including by making all affected employees whole as soon as practicable.

The violations of the Act were not “willful”; meaning that the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited…”. This is where getting guidance from your employment counsel can provide you with a defense for honest mistakes.

The Department receives a written commitment from the employer to comply with the Act in the future.

Being able to prove that you did not show reckless disregard means that you take objective, concrete steps to comply with the law.

Employees must support leave requests with the appropriate information, including the employee’s name, qualifying reason for leave, a statement that the employee is unable to work or telework for that reason, and leave date(s).

Employees must provide documentation supporting the absence, for example, written documentation from a health care provider advising self-quarantine, a notice posted on a government, school, or daycare website, or an email from an employee or official of the school, place of care, or child care provider. As you can see, the standard will be fairly low.

This document does not answer all of our questions, but it does provide us with some useful guidance. These are what I think are the most useful bits:

The FFCRA’s paid leave provisions are effective on April 1, 2020, not April 2 as we expected.

The DOL to set guidance for an exemption to the emergency FMLA leave (12 weeks) for businesses with less than 50 employees where providing the leave would jeopardize the viability of the business as a going concern. The DOL has instructed small businesses to document the reason that providing the leave would jeopardize the business as a going concern for now, and indicated that additional guidance would be forthcoming.

We calculate the number of employees at the time that the employee takes leave.

We are to include the following as employees: employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only you’re or another employer’s payroll); day laborers supplied by a temporary agency.

We do NOT include independent contractors under the Fair Labor Standards Act (FLSA),

The Q&A sheet provides some guidance on how to cumulate the employees of two related entities for purposes of determining the 500-employee threshold

When calculating pay due to employees under the emergency paid leave provision (80 hours or 2-week average), we should include overtime hours worked. For example, an employee who is scheduled to work 55 hours a week may take 55 hours of paid sick leave in the first week, but would only be allowed 25 hours in the second week, and no more than 80 hours total.

While the overtime hours are included, the pay rate does not need to include premium overtime pay.

Paid emergency sick leave (80 hours) and expanded FMLA (12 weeks) run concurrently and are NOT retroactive. You will not be able to count any leave allowed before April 1 against your obligations to provide paid leave under the FFCRA.

The “regular rate of pay” used to calculate leave pay and is the average of an employee’s regular rate over a period of up to six months prior to the date on which the leave is taken. If an employer recently cut pay or place employees on unpaid leave, the employer must look back at the employee’s total compensation for the last six months and divide it by all hours actually worked to determine the regular rate of pay.